WASHINGTON — The Senate confirmed Ketanji Brown Jackson on Thursday as the first Black woman to serve on the Supreme Court, the end of a historic nomination process streaked with acrimony even for a justice who will not alter the court’s current conservative tilt.
Jackson, who received bipartisan support in a 53-47 vote, will also be the first former public defender to sit on the court. It’s a professional background that Democrats said would add a much needed perspective on the high court but Republicans mined to accuse Jackson of being soft on crime.
Jackson will take the seat of Justice Stephen G. Breyer, who plans to retire at the end of the term in June. By then, the 6-3 conservative majority is expected to deliver major rulings on abortion and gun rights that could fuel debate about the high court’s legitimacy. On the horizon are cases about election laws and congressional redistricting after the 2020 census.
Senate Democrats remained focused on Jackson’s education and track record as a federal judge and repeatedly drove home how she stands at the precipice of history: a first on the Supreme Court like Justice Thurgood Marshall, the first Black man, or Justice Sandra Day O’Connor, the first woman.
“She will be the first, and I have no doubt in my mind she will pave the way for others in the future,” Majority Leader Charles E. Schumer said on the Senate floor Wednesday. “It’s a key feature of a healthy and vibrant democracy, when Americans of all walks of life come before the court, they should have confidence that those who don the robes have the ability to walk in their own shoes, to see and understand their side of the story.”
Although some Republicans spoke of having a “respectful” process, some on the Senate Judiciary Committee sought to link Jackson to critical race theory, rising crime and weak sentences for certain child pornography offenders. Texas Republican Sen. Ted Cruz said she would be “the most extreme and furthest left justice to ever serve” on the Supreme Court.
Along with all 50 senators in the Democratic caucus, three Republicans voted for Jackson even though they said they wouldn’t agree with every decision she made. Those were Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah. Earlier, Collins called the Supreme Court confirmation process “broken.”
History made
President Joe Biden fulfilled a campaign promise to nominate a Black woman for his first Supreme Court pick. Even senators who opposed Jackson described her as well qualified.
In a floor speech Wednesday, Senate Judiciary Chair Richard J. Durbin said Jackson “has the kind of résumé every lawyer would dream of,” which includes Harvard Law School, service as a federal public defender and federal trial judge, stints on the Federal Sentencing Commission and serving as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
But at times, the emotions were raw. Jackson shed tears at her committee hearing during a passionate speech from New Jersey Democratic Sen. Cory Booker that touched on the nation’s history of racism. “I know what it’s taken for you to sit in that seat,” Booker told the daughter of two public school teachers who had experienced segregation.
Dayna Bowen Matthew, dean of the George Washington University Law School, who organized a letter of support for Jackson’s nomination among Black law school deans, said numerous qualified Black women have served on the federal bench or argued cases before the Supreme Court over the decades.
But, until now, they have not been considered for the highest court. Matthew, who is Black, said Jackson’s confirmation “means we might finally reverse the discrimination and take another step towards becoming a more perfect union that we said when we first started this country.”
“But what it means to me individually and what it means to my Black daughters is that we are seeing yet another step forward,” Matthew said. “Finally, being recognized for our full value, our full worth and our full contributions to this nation.”
On the court
Since Jackson is taking the seat of Breyer, also appointed by a Democratic president, the court’s ideological balance will keep the 6-3 advantage to conservative justices who were appointed by a Republican president.
For the first time there will be four women on the Supreme Court at the same time. Jackson, along with Justices Sonia Sotomayor and Elena Kagan, will often find themselves in the dissent on divisive issues.
“The reality of it is there’s a supermajority of the court that’s in thrall to a particular conservative legal movement,” said New York University Law School professor Noah Rosenblum.
Rosenblum said there are still particular areas of the law where Jackson may stake out her own territory, such as antitrust law. He also pointed out that Jackson will write dissents on many of the major issues before the court, but how she writes them will matter.
Matthew said those dissents will still give Jackson the opportunity to be heard, noting a now famous dissent in an 1896 ruling that upheld segregation.
“Don’t underestimate the power of a dissent,” Matthew said. “If it wasn’t for the dissenting opinion in Plessy v. Ferguson, I would not be sitting here today as the dean of George Washington University Law School.”
Contentious confirmations
After an 11-11 tied vote on Jackson’s nomination at the Senate Judiciary Committee last week, Delaware Democratic Sen. Chris Coons said the confirmation battles have only gotten worse since he worked for then-Sen. Biden in 1991.
“The grievances have accumulated, they’ve deepened and they’ve become more divisive,” said Coons, who is known for reaching across the partisan aisle. “If there is a Republican majority, they’re making it damn clear we will struggle to confirm anything, let alone a Supreme Court justice.”
During the confirmation hearing, members on both sides dragged out decades of sore spots over judicial confirmations — a tit for tat that Booker likened to the “Seinfeld”-invented holiday of “Festivus” and its traditional airing of grievances.
Over time, Supreme Court confirmations have grown more partisan. A nominee last received more than 70 votes in 2005. The last nominee to the court, Justice Amy Coney Barrett, received 52 votes and none from Democrats.
The three Republicans who have backed Jackson — Collins, Murkowski and Romney — also implored their colleagues to turn the temperature down on Supreme Court confirmations.
There’s no indication that may happen anytime soon, though. Minority Leader Mitch McConnell on Tuesday declined to say whether a Republican-controlled Senate would take up another Biden nominee next year.
“What I can say with pretty great certainty is the president, who ran as a moderate and who has governed as Bernie Sanders would, would have to spend the last two years of his term being a moderate,” McConnell said.
That came after Sen. Lindsey Graham, R-S.C., went as far as to say the chamber would not have considered Jackson’s nomination had Republicans been in the majority. Graham, who previously served as head of the Judiciary Committee, has defended Republicans’ questioning of Jackson, comparing it favorably to Democrats’ handling of sexual assault allegations against Justice Brett M. Kavanaugh.
“If we get back the Senate and we’re in charge of this body and there’s judicial openings, we will talk to our colleagues on the other side,” Graham said ahead of the committee vote. “But if we were in charge, she would not have been before this committee. You would have had somebody more moderate than this.”
